Civil Revision Petition is filed against the judgment and decree dated 13.04.2016 in R.C.A.No.33 of 2010 on the file of the Rent Control Appellate Authority, Subordinate Court, Coimbatore, confirming the fair and decreetal order dated 31.03.2010 passed in R.C.O.P.No.151 of 2006 on the file of the Rent Controller, District Munsif Court, Coimbatore.
2.The respondents as the petitioners filed a petition in R.C.O.P.No.151 of 2006 for eviction on the ground of denial of title, wilful default and owners occupation. The Rent Controller, after considering the oral and documentary evidence and also the objection raised by the petitioner/tenant, allowed the petition for wilful default and also for owners occupation. Aggrieved over the same, the petitioner/tenant has preferred an appeal in R.C.A.No.33 of 2010. The learned Rent Control Appellate Authority, after hearing both sides, has confirmed the fair and decreetal order passed by the Rent Controller, against which, the present revision is preferred by the petitioner/tenant.
3.Learned senior counsel appearing for the petitioner would submit that both the Courts below have not taken into account the advance amount of Rs.15,000/-, which is already with the landlord. Admittedly, the petition is filed only for wilful default for non payment of monthly rent by the petitioner/tenant for seven months. Even the advance amount is adjusted towards rent, there is a balance amount. So both the Courts below have committed an error by passing eviction order on the ground of wilful default. The second limb of argument advanced by the learned senior counsel for the petitioner is that the property is a residential one, but the respondents sought for use and occupation for his son's business purpose, which is commercial in nature. That factum was not considered by both the Courts below. Hence, he prays for allowing the revision.
4.Resisting the same, learned counsel for the respondents/landlords would submit that the petitioner is a tenant and he has paid an advance amount of Rs.15,000/- and the monthly rent is fixed at Rs.1,500/-. Then the respondents have entered into a sale agreement with the petitioner, in which, the sale price is fixed at Rs.12 Lakhs, the petitioner has paid Rs.1,001/- as advance amount and three months time has been fixed for performance of contract. In pursuant to the sale agreement, the possession has not been handed over to the petitioner/tenant. Since the petitioner/tenant has not fulfilled his contract, in the mediation, the sale agreement was cancelled. But the petitioner/tenant has filed a suit in O.S.No.135 of 2008 for specific performance, which was dismissed. But the petitioner has not paid the rent regularly. The petitioner has possessed the property only as a tenant and not as an agreement holder. He has not paid the rent for seven months and that factum was rightly considered by the Courts below and ordered eviction. It is further submitted that the building is required for personal occupation of the first respondent/land lady's son, who got the property by way of settlement deed. So the requirement for personal occupation is bonafide. Both the Courts below have rightly considered those aspects and passed order. Hence, he prays for dismissal of the revision. To substantiate his arguments, he relied upon the following decisions:
(i) Civil Appeal No.7448 of 2011 in (The National Textile Corporation Ltd. v. Nareshkumar Badrikumar Jagad and others);
(ii) AIR 2002 SC 2087 (Raminder singh Sethi v. D.Vijayarangam);
(iii) (2013) 4 MLJ 755 (Rizwanur Rahman v. VMS.Seyedha and others);
(iv) 2007 (4) CTC 796 (Balu @ Babu and others v. Maria Conchita Sam @ Maria Shroffe and another);
(v) (2011) 7 MLJ 264 (K.Mani v. M.D.Jayavel and others);
5.Heard both sides and perused the materials available on record.
6.Now this Court has to decide the following points for consideration:
(i) Whether both the Courts below have rightly held that the petitioner/tenant has committed wilful default in payment of rent?
(ii) Whether the demised premises required for owners occupation, is bona fide?
(iii) Whether the fair and decreetal order passed by both the Courts below are sustainable?
Point No.1:Wilful Default
7.Admittedly, the tenancy relationship between the petitioner and the respondent is not disputed. Exs.P1 and P2/sale agreements are also not disputed. The second respondent is none other than the son of the first respondent. The first respondent, in the petition, stated that since the second respondent wants to pursue his higher studies in Abroad, she entered into the sale agreement with the petitioner. But the petitioner was not in a position to get the sale deed within the stipulated time and the time expired. However, the petitioner has caused legal notice on 03.01.2006 and subsequently, he has withdrawn the same. The sale agreement was cancelled in the mediation on 24.01.2006, which was marked as Ex.P6. Thereafter, the petitioner has lodged the complaint against the respondent and a case has been registered and it was quashed by this Court, as per Ex.P17. It shows that the sale agreement goes.
8.The first and foremost argument of the learned senior counsel appearing for the petitioner is that Rs.15,000/- towards advance amount was paid. As per the averment in the petition, advance amount is Rs.15,000/- and monthly rent is Rs.1,500/-. But the petitioner/tenant has not paid rent for seven months. Advance amount is calculated for ten months. So it will not amount to wilful default. He would further submit that the said advance amount can be adjusted towards rent.
9.As per the counter filed by the petitioner in the RCOP, the petitioner is not the tenant. He has entered into the sale agreement with the respondents and on that basis only, the petitioner has entered into the property. The evidence also shows that the petitioner is the tenant and subsequently, he has entered into the sale agreement with the respondents.
10.Even though in the counter filed by the petitioner, he stated that he was put in possession on the basis of the sale agreement and on this aspect, now no argument was advanced by him. But in the decision relied upon by the learned counsel for the respondents/landlords reported in (2011) 7 MLJ 264 (K.Mani v. M.D.Jayavel and others), it is held that mere agreement of sale will not terminate the landlord tenant relationship. In para-29, it is held as follows:
29. Absolutely, there could be no hesitation in falling in line with the view found highlighted in those precedents and there is no conflict of opinion also in this regard. There is no hard and fast rule that soon after the emergence of an agreement to sell between a landlord and a tenant with regard to a demised premises, the possession of the tenant should automatically get itself converted into one that of an agreement holder, unless there is specification to that effect in the agreement itself. In the sale agreement, there is no specific averment that the possession has been handed over to the petitioner/tenant. Therefore, applying the Ratio Decidendi stated in 2011 7 MLJ 264, mere agreement of sale will not terminate the landlord-tenant relationship.
11.At this juncture, it is appropriate to consider the following decisions relied upon by the learned counsel for the respondents:
(i) In Civil Appeal No.7448 of 2011 in (The National Textile Corporation Ltd. v. Nareshkumar Badrikumar Jagad and others), dated, 05.09.2011, it was held that the pleadings and particulars are necessary to enable the Court to decide the rights of the parties in the trial. In the case on hand, as per the counter filed by the petitioner, he entered into the sale agreement with the respondents, but whereas at the time of argument, he has stated that advance amount to be adjusted towards rent. As per the above decision, it is a settled legal proposition that "as a rule relief not founded on the pleadings should not be granted. The respondents cannot be permitted to make out a new case by seeking permission to raise additional grounds in revision. There is no quarrel over the above proposition. In the case on hand, the petitioner has also not mentioned the same in his counter. However, the respondents/landlords themselves have admitted that the petitioner has paid Rs.15,000/- as an advance and monthly rent is Rs.1,500/-.
(ii) In AIR 2002 SC 2087 (Raminder singh Sethi v. D.Vijayarangam), it is held that failure of tenant to tender monthly rent due, tenant can be said to be in arrears of rent despite availability of advance rent with landlord. It is appropriate to extract para-4, which runs as follows:
4.Every tenant is obliged to pay or tender rent to the landlord within 15 days of the month to which the rent relates. The purpose of advance rent is to protect the landlord from the unscrupulous tenant who may run into arrears and vacate the premises and comfortably walk away with arrears. The advance rent is available for adjustment or is liable to be refunded at the time of vacating of the premises except where the law or the contract between the parties provides to the contrary. We have already noticed that the provisions of the Act do not apply to the premises and, therefore, the landlord was not prevented by law from securing advance payment of rent by consent of the parties. It is not the case of the tenant that the contract between the parties provides for adjustment of rent no sooner it fell into arrears from out of the amount of advance rent. In short, the tenant-appellant was not absolved of his obligation to pay the rent due month by month in spite of an amount of advance rent being available with the landlord. The High Court has rightly discarded the submission made on behalf of the tenant-appellant that the landlord while serving the notice of demand on the tenant should have himself allowed an adjustment of the amount of the advance rent against the arrears and should have confined his demand only to such amount in arrears as exceeded the amount of advance rent or should have waited till the amount of rent in arrears had accumulated to exceed the amount of advance rent. In spite of the landlord having the amount of advance rent available with him the tenant is bound to pay or tender the amount of rent falling due month by month on the date on which it is payable as per law or contract.
(iii) In (2013) 4 MLJ 755 (Rizwanur Rahman v. VMS.Seyedha and others), in which, para-22 and 24 are extracted hereunder:
22. On the contention that the landlord is having an advance of Rs.32,500/-, which could be adjusted towards rental arrears, no document has been filed by the tenant to show that he had ever requested the landlords to adjust the rental amount for the defaulted period. Further, the Rent Control authorities have also noticed that the arrears of rent from September 2004 to February 2005 amounting to Rs.45,000/- cannot be adjusted, against a sum of Rs.32,500/- stated to have been paid as advance. As rightly observed the defaulted amount is more than the advance. In Raminder Singh Sethi vs D. Vijayarangam, reported in AIR 2002 SC 2087, the Supreme Court has held as follows.
"The tenant can be said to be in arrears of rent despite availability of advance rent with landlord. Landlord is not bound to adjust amount of advance rent available with him against arrears".
23. .. ..
24. In Mr.Nandi Khanna vs Suneel Aiyer, reported in 2009 (2) CTC 495, one of the main contentions raised by the tenant was that the landlord, had not adjusted, the arrears of rent from the advance amount and when the advance amount retained by the landlord is over and above one month's rent, then, whether he is entitled to seek for adjustment of arrears of rent or not. After considering a line of decisions, Hon'ble Mr. Justice. A.C.Arumugaperumal Adityan, while clarifying and distinguishing a decision reported in K.Selvaraj Vs. J. Narayanan, reported in 2008 (2) CTC 375, held that adjustment of advance amount towards arrears of rent, is not permissible when arrears of rent exceeds advance amount. Merely because the landlord possessed the advance amount paid by the tenant, it will not absolve the tenant to tender the rent. Otherwise, if the tenant wants to vacate the premises, he has to give notice in advance directing the landlord to adjust the advance amount towards rent. But the petitioner did not do so. It is not the case of the petitioner/tenant that the contract between the parties provides for adjustment of rent, as soon as it fell into arrears from out of the amount of advance rent. Moreover, there was no contract between the landlord and tenant, as soon as the rent is due, the landlord has given permission to adjust towards the arrears of rent. In such circumstances, I am of the view that the argument advanced by the learned senior counsel appearing for the petitioner that advance amount has to be adjusted towards rent, does not merit acceptance.
12.Considering the aforestated circumstances of the case along with the above decisions, merely because the advance amount is with the landlords/respondents, the petitioner has not paid the rent for seven months, which will not absolve him from committing wilful default in payment of rent. That factum was rightly considered by both the Courts below. Hence, I do not find any reason to interfere with the concurrent findings rendered by both the Courts below and the eviction ordered on the ground of wilful default is hereby confirmed. Point No.1 is answered accordingly.
Point No.2:Demised premises is required for owners occupation is bonafide?
13.The second ground for eviction is the demised premises required for owners occupation. The first respondent/landlord stated that after the property has been settled in favour of her son, her son wants to use the building for commercial purpose, since she has not possessed any other property and that she sought for the property for personal occupation. Learned senior counsel for the petitioner would submit that the demised premises is a residential building, but the first respondent sought for commercial purpose. Hence, it is not bonafide. The above argument does not hold good.
14.On perusal of entire records reveals that the property is a residential property. The son of the first respondent/land lady is the second respondent, who got the property by way of settlement deed under Ex.P7, was examined as P.W.2. In his evidence, he has stated that he has passed M.Sc.Genomics in the year 2006. After that, he planned to start a business by using Knowledge Process Outsourcing Technology. He is also running a business in his mother/first respondent's property in the name and style of 'Noyal Experts Solutions'. Now he wants to expand the same and hence, he required the building for personal occupation. So there is no contra evidence against the evidence of P.W.2. Hence, both the Courts below have considered the above aspect and rightly held that the demised premises required for owners' own use and occupation is bona fide.
15.Considering the aforestated circumstances of the case, I am of the view that both the Courts below have rightly held that the building required for owners occupation is bonafide one. In my opinion, it does not warrant any interference and that it is hereby confirmed. Point No.2 is answered accordingly.
Point No.3:Whether the fair and decreetal order passed by both the Courts below are sustainable?
16.In view of the answers given to point Nos.1 and 2, the eviction order passed by both the Courts below is sustainable and it does not suffer any illegality or infirmity and it is hereby confirmed. Consequently, the Civil Revision Petition is dismissed. Point No.3 is answered accordingly.
17.In the result, the Civil Revision Petition is dismissed by confirming the fair and decreetal order passed by both the Courts below. Three months time is granted to the petitioner/tenant to evict the premises. No costs.
05.01.2017 kj Index:Yes/No To
1.The Rent Controller, District Munsif Court, Coimbatore.
2.The Rent Control Appellate Authority, Subordinate Court, Coimbatore.
3.The Section Officer, V.R.Section, High Court, Chennai.
R.MALA,J.
Kj Pre-delivery order made in C.R.P(NPD).No.2803 of 2016 Dated. 05.01.2017